1. ' MUHAMMAD NAWAZ ABBASI, J.---The petitioners namely Farooq alias Farooqay in Jail Petition No,176 of 2000 and Khalid alias Khaliday alias Fauji in JP 215 of 2001 have sought leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment dated 20-9-2001 passed by a learned Division Bench of Peshawar High Court, Peshawar, in Criminal Appeal No,7 of 1999 and Murder Reference No,12 of 1999.
2. ' The petitioners were tried jointly for the charges under sections 302/34 and 452, P.P.C. In a case registered against them at Police Station Zaida, District Swabi by the learned Additional Sessions Judge, Swabi, exercising powers of Special Court. The allegations against the petitioners were that they on 21-1-1997 at 13-30 hours while committing trespass into the house of Mst. Amir Zadgai complainant, situated in Village Dadoo in the area of Police Station Zaida in furtherance of their common intention committed Qatl-e-Amad of Syed Wazir Shah son of the complainant and Mst.
3. Rahat wife of Syed Wazir Shah by firing on them in their house and also committing offence under section 429, P.P.C. For firing at buffalo of the complainant. The case was registered on the statement made by Mst. Amir Zadgai, mother of Syed Wazir Shah at 15-00 hours on the same day at Police Station, Zaida, District Swabi.
4. ' The relevant facts in small compass as disclosed in the F.I.R. (Exh.P.A.) are that on the fateful day complainant namely Mst. Amir Zadgai alongwith her son Wazir Shah, Mst. Rahat wife of Wazir Shah and Mst. Badray her daughter were present in henhouse when at about 13-30 hours Khalid alias Fauji, real brother of Mst. Rahat and brother-in-law of Wazir Shah alongwith his cousin Farooq, both residents of Zaida, armed with lethal weapons entered in her house. Wazir Shah and his wife Mst.
5. Rahat having noticed presence of the accused ran inside the "Kotha" and bolted the door of Kotha from inside but the accused while breaking open the door, entered in the room and fired at Wazir Shah and his wife as a result of which they having sustained injuries expired at the spot. With the firing of the accused, buffalo of the complainant was also hit. The motive behind the occurrence as disclosed by the complainant was the dispute of money between Wazir Shah and Khalid accused.
6. ' A.S.-I. Ajab Gul of Police Station Zaida after recording statement of the complainant and registration of the case prepared the injury statement and inquest report of the two deceased and sent the dead bodies to the mortuary for post-mortem examination. The Investigating Officer during spot inspection took into possession the blood-stained earth from the places where Mst.
7. Rahat and Wazir Shah were murdered, three crime empties from the Kotha, and one spent bullet found in the wall of Kotha and also prepared the site plan. The Investigating Officer then took into possession the bloodstained clothes of the deceased which were delivered to him by a constable who collected the same from the doctor after post-mortem examination. The accused absconded and the Investigating Officer having obtained warrants under section 204, Cr.P.C. Got them declared as proclaimed offenders. The blood-stained earth and clothes of the deceased were sent to Chemical Examiner for analysis and the crime empties with spent bullet were sent to Forensic Science Laboratory for expert opinion. Dr. Zohra (P.W.18) Women Medical Officer conducted autopsy on the dead body of Mst. Rahat wife of Wazir Shah and found following injuries on her person:- ' "External Examination: ' Entry wound No,1; there is wound, of about 2" incise on the neck about 2" below the left ear, posteriorily.
8. ' Exit wound No,2; size about 4" present on the neck towards the left side interiorly about 1" above medial end of the left clavicle.
9. ' Entry wound No,3; size about 1/1-4" on the left forear towards the medial border about 3" above the left wrist-joint. Exit wound No,4; there is wound about 5" in size on the left elbow-joint, causing lose of skin muscles bone underlying was fractured on the interior surface.
10. ' Note: Injury No,1 and No,3, are the entry wounds, while injury Nos.2 and 3 are exit wounds.
11. ' "External Examination: ' Thorax was healthy, but major blood vessels (carotid jugler) on the left side of the neck was injured ' Abdomen was healthy, the stomach was empty. Muscles, and bomes of left elbow-joint were injured and bone fractured.
12. ' Dr. Amjad Kakakhel, M.O., kural Health Centre, Khand (P.W.1) conducted autopsy on the dead body of Syed Wazir Shah and found following injuries on his persons:--
(1) A.F.A. Entry wound 1/2" in size, rounded on the superior ilhaspine (left side).
(2) F.A. Exit wound on the right renal area, 1" in size, lacerated.
(3) A.F.A. Entry wounded the left hypochondriem 2 in number, 4" apart each measuring 1-1/2" in size rounded.
(4) F.A. Exit wound 1" in size lacerated on right lateral wall below the inferior angle of scapula.
(5) A.F.A. Exit wound 1" in size on the lateral abdominal wall 5" below the wound No,4."
13. ' "Internal Examination: ' Thorax:---Wall, ribs and cartilages, pleurea, right lung injured.
14. ' Abdomen:--Walls, pertoneum, diaphgram, small intestine, large intestine".
15. ' The report of Forensic Science Laboratory relating to the bloodstained earth and last-worn clothes of the deceased, was placed on record. Dr. Saraj Veterinary Hospital, Swabi, having examined the buffalo of Mst. Zardgai found a fire arm wound, of the size 3 x 3 c.m. On the left flank over the front head of buffalo. Mst. Zardgai (P.W.14) mother of Wazir Shah and mother-in-law of Mst. Rahat respectively and Mst. Badray (P.W.15) furnished ocular account of the occurrence. The evidence of remaining witnesses who remained associated with investigation being not of much importance need not be to be discussed.
16. ' The petitioners while denying the charge in their statements under section 342, Cr.P.C. Made the following common reply to the question put to them that why they were charged:-- ' "I am innocent and falsely charged. In fact Mst. Rahat was legally wedded wife of one Tamrez and she has three children from the said Tamrez, but later on Mst. Rahat was abducted by deceased Said Wazir Shah and she was captured by him illegally. The said Tamrez was inimical towards the deceased. I have no motive to commit the murder of the deceased."
17. ' The defence plea taken by the petitioners was also put to the witnesses in their cross- examination. The learned trial Judge having made the detailed scrutiny of the evidence came to the conclusion that tile petitioners were guilty of charge and consequently convicted and sentenced them vide judgment dated 7-1-1999 as under:--
(a) Under section 302/34, P.P.C. Sentenced to death on two counts for committing murders of Wazir Shah and Mst. Rahat.
(b) Under section 452/34, P.P.C. R.I. For five years each with the fine of Rs,2,000 each and in default of payment of fine to suffer R.I. For two months each.
(c) Under section 429/34, P.P.C. R.I. For two years each with direction to pay Rs,20,000 each as compensation.
18. ' The convictions and sentences awarded to the petitioners were further upheld by the High Court through the impugned judgment.
19. ' Learned counsel for the petitioner has raised the following contentions in support of these petitions:-
(a) That the eye-witnesses being the real mother and sister of Wazir Shah deceased were interested and not independent witnesses and their testimony was not reliable without corroboration.
(b) That the statements of eye-witnesses are full of contradictions and discrepancies which would lend support to the defence version as correctness of the defence plea was spelling out from their statements. Learned counsel also highlighted relevant portions of their statements in support of his contention.
(c) That as per prosecution version, the petitioners by breaking open the door of Kotha, opened firing at the deceased inside the Kotha but neither broken pieces of the door were taken into possession nor it was specified that in what manner the injuries were caused to the deceased and who caused which injury.
(d) That none of the eye-witnesses sustained any injury in the occurrence and their conduct of non-interference being real mother and sister was unnatural.
20. ' Learned counsel in the light of defence version concluded that Mst. Rahat was married with Tamrez and being mother of 2 children eloped with said Wazir Shah whereupon said Tamrez being revengeful committed the murder of both Mst. Rahat and Wazir Shah. However, the learned counsel has not been able to offer any explanation that for what reason the petitioners were substituted for the real culprits.
21. ' We have heard the learned counsel for the petitioners at length and also scrutinized the evidence in detail in the light of defence version. From the suggestions put to Mst. Badray ant Mst. Amir Zargai, an inference can be drawn that Mst. Rahat was earlier married with Tamraiz but there was nothing on record to suggest that the married tie between Mst. Rahat and Tamraz was still in existence. The fateful occurrence took place in the house of Mst. Amir Zargai at 13-30 hours, the report of which was lodged at 15-00 hours on the same day at Police Station, Zaida which is situated at a distance of 4/5 kms. From the place of occurrence. According to the story of F.I.R., the accused while carrying fire-arms trespassed into the house and by breaking the door of Kotha fired at the deceased. It is noticeable that in the circumstances, it was not possible for the witnesses to point out that in what manner and sequence the deceased suffered injuries at the hands of the accused. It was also not possible for the witnesses to specify whether both the deceased sustained injuries as a result of firing of both the accused or one of them was responsible for causing their death. The accused were attributed collective role of firing at the deceased, therefore, the contention of the learned counsel that non-specification of injuries would be a mitigating circumstance in favour of the accused, was without substance.
22. ' We having considered the defence version and find that the same was without foundation. The occurrence took place in the broad daylight in the house of complainant within the sight of the inmates of the house, who were natural witnesses of the occurrence. The defence has not been able to bring on record any circumstance to suggest that real mother and sister of Wazir Shah who having conducted marriage with Mst. Rahat was living with them, would substitute the petitioners for real culprits. The petitioners having taken defence plea in their statement under section 342, Cr.P.C. Have neither bothered to make the statements on oath under section 340(2), P.P.C. To substantiate the defence version nor have produced any evidence in support of the fact that Mst.
23. Rahat while being in marriage tie with Tamraz eloped with Syed Wazir Shah. The evidence does not suggest that any case of elopement of Mst. Rahat with Syed Wazir Shah under Hudood Ordinance, 1979 was registered against the deceased. There is also no evidence on record to prove that Mst.
24. Kausar and Mst. Shabana the minor daughters of Tamraiz were from Mst. Rahat. The mere putting a version without any evidence in support thereof, would not be sufficient to dislodge the prosecution story and we may observe that the defence plea of the accused is found spelling out from the prosecution evidence and appeals to mind, therefore, the same should be given weight and the benefit of doubt if any arising vis-a-vis guilt of the accused, it must be given to the accused. In the present case, we find that the defence plea taken by the accused was not supported by any evidence direct or circumstantial. The motive given by the prosecution for committing the murder of Mst. Rahat and her husband by her real brother and cousin would not appeal to mind and it appears that they had some very strong motive for taking such an extreme step of killing their own sister and brother-in-law. It is in the prosecution story that Mst. Rahat and Syed Wazir Shah on noticing the presence of accused being frightened ran into the Kotha to save themselves which would show that the reason behind the occurrence was not the dispute of money and the possibility that Mst. Rahat without consent of the accused conducted marriage with Syed Wazir Shah being not ruled out, the accused being revengeful done to death both of them. The eye-witnesses have narrated the occurrence in detail without any exaggeration and describable contradiction and discrepancy and none of the parties has brought on record any other enmity between them except the dispute of money in the background, therefore, there would be no question of substitution of the petitioners with the real culprits.
25. ' We having gone through the record with the assistance of the learned counsel for the petitioner and are satisfied that the conviction and sentence awarded to them by the trial Court and maintained by the High Court being based on sound principles of criminal administration of justice does not call for any interference.
26. ' For the foregoing reasons, we dismiss these petitions and leave to appeal is refused. The conviction and sentence awarded to the petitioners is maintained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.